United States Court of Appeals

For the Eighth Circuit

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No. 15-2394

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Zackary Lee Stewart

lllllllllllllllllllll Plaintiff - Appellee

v.

Karl Wagner, Matt Selby

lllllllllllllllllllll Defendants - Appellants

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Appeal from United States District Court 

for the Western District of Missouri - Springfield

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 Submitted: February 9, 2016

 Filed: September 12, 2016

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Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

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LOKEN, Circuit Judge. 

In 2008, a Missouri jury convicted Zackary Stewart of murdering David Dulin. 

On appeal, Stewart argued the trial court erred in denying his motion for new trial

based on newly-discovered evidence. The Supreme Court of Missouri agreed,

reversed the conviction, and remanded for a new trial. State v. Stewart, 313 S.W.3d

661 (Mo. banc 2010). The charges were dropped when another person confessed to
the murder. Stewart then filed this civil damage action against five individuals and

Stone County, Missouri, asserting various claims under 42 U.S.C. § 1983 and

Missouri state law. Defendants moved for summary judgment. The district court

granted summary judgment and dismissed Stone County, the County Sheriff, and the

Sheriff’s criminal investigation supervisor. The court denied the motions of Stone

County Prosecutor Matt Selby, lead investigator Karl Wagner, and investigator

Orville Choate, who has not appealed, rejecting their claims of absolute, qualified,

and official immunity. Selby and Wagner appeal. We reverse in part and remand. 

I. Jurisdiction and the Issues on Appeal.

“An interlocutory order denying qualified immunity isimmediately appealable

to the extent that it turns on an issue of law. If the order turns on issues of fact, rather

than an abstract issue of law, we lack jurisdiction over the appeal because the

decision is not a final order immediately appealable under the collateral order

doctrine.” Aaron v. Shelley, 624 F.3d 882, 883-84 (8th Cir. 2010) (citation and

quotations omitted). We also lack jurisdiction over pendent interlocutory claims

under state and federal law unlessthose claims are “inextricably intertwined with the

collateral order that is properly appealed, or where review [is] necessary to ensure

meaningful review of the properly appealed issue.” Kincade v. City of Blue Springs,

64 F.3d 389, 394 (8th Cir. 1995), cert. denied, 517 U.S. 1166 (1996). 

Here, Selby properly appeals the denial of qualified immunity and absolute

prosecutorial immunity fromStewart’s § 1983 due process claimbased on the alleged

fabrication of false testimony by a witness at Stewart’s preliminary hearing. Selby

and Wagner properly appeal the denial of qualified immunity from Stewart’s § 1983

Sixth Amendment claims for actions that resulted in testimony by jailhouse

informants at his criminal trial. However, we decline Selby’s further invitation to

review the district court’s denial of (i) § 1983 claims that Selby has not briefed, such

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as Stewart’s § 1983 conspiracy claim; and (ii) Stewart’s state law claims. This

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opinion should not be construed as expressing our view on any of these other claims,

with the following exception: 

Stewart claims that investigators Wagner and Choate violated his right to due

process as defined in Brady v. Maryland, 373 U.S. 83, 87 (1963), when they caused

the prosecution not to disclose evidence that would have been favorable to the

defense at Stewart’s trial. The summary judgment record isreplete with material fact

disputes regarding these claims, and Wagner has not appealed the denial of qualified

immunity. However, we note that, while a prosecutor’s duty to disclose is absolute,

to recover damages from other law enforcement officials for a Brady violation, a

§ 1983 plaintiff must prove the requisite mens rea. In denying investigators Wagner

and Choate summary judgment on this claim, the district court adopted the

amorphous “bad faith” mens rea standard set forth in White v. McKinley, 519 F.3d

806, 814 (8th Cir. 2008), rather than the more precise standard adopted in our earlier,

and therefore controlling, opinion in Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir.

2004) -- “Brady ensuresthat the defendant will obtain relief froma conviction tainted

by the State’s nondisclosure of materially favorable evidence, regardless of fault, but

the recovery of § 1983 damages requires proof that a law enforcement officer other

than the prosecutor intended to deprive the defendant of a fair trial.” (Emphasis

added.) The district court must apply this controlling standard when the issue again

arises on remand, whether before, during, or after trial. 

Selby argues that he is entitled to official immunity under Missouri law for his

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performance of discretionary acts as a prosecutor. But he cites no authority, as he

must, establishing that interlocutory denials of official immunity under state law are

collateral orders within our limited appellate jurisdiction. In addition, Missouri’s

official immunity doctrine shields only negligent acts. Davis v. Lambert-St. Louis

Int’l Airport, 193 S.W.3d 760, 763 (Mo. banc 2006). The district court found genuine

issues of material fact as to whether Stewart could prove intentional misconduct, not

merely negligent acts.

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II. The “Fabricated Evidence” Claim.

On November 29, 2006, Dulin called 911 from his home in Stone County and

reported that he had been shot with his own .22 caliber handgun by two men in their

twenties or thirties, and that one identified himself as the boyfriend of an “Eby girl

from Hurley.” Dulin died at the scene. The Stone County Sheriff’s Office assigned

Wagner as lead detective in the homicide investigation. 

The investigation focused on Dulin’s statement that the boyfriend of an “Eby

girl from Hurley” was involved. Stewart, then eighteen years old, was the son of

Paula Eby of Hurley. His sisters were Candy Seaman, married to but separated from

Tim Seaman, and Christy Pethoud, then living with her boyfriend, Leo Connelly. 

Though Pethoud’s last name was not “Eby,” the investigation treated her as an “Eby

girl.” Interviewed on December 1, Stewart told investigators that he spent the night

in question at the home of Pethoud and Connelly, and that Tim Seaman was married

to his sister, Candy Seaman.

On March 15, 2007, Alicia Kimberling arrived at the Stone County Judicial

Center for a probation appointment. Wagner learned that Kimberling had said Leo

Connelly was involved in the homicide. He arrested her for an unresolved probation

violation and interviewed her. Kimberling identified Connelly and Pethoud as

Dulin’s killers but did not claim Stewart wasinvolved. Wagner told her Stewart was

a suspect and Stewart and Connelly were together that night. She agreed to assist the

investigation after learning about potential rewards for cooperating. Wagner

provided Kimberling with devices to record conversations with Connelly, Candy

Seaman, and Stewart on March 16, 17, and 20. The recordings provided no

incriminating evidence. 

On March 27, after Selby had discussed a plea agreement with Kimberling’s

attorney, Selby and Wagner interviewed Kimberling. She incriminated Stewart for

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the first time, claiming that she saw Stewart, Connelly, and Pethoud in a car shortly

after the homicide; that Connelly was covered in blood; that Stewart was in the back

of the car; and thatshe saw a gun. At this point in the recorded interview, Kimberling

stopped answering questions and said: “I’m scared. . . . I’m so scared to talk to you

guys.” Selby responded: 

You know, Alicia, you’re not -- I don’t think by talking you’re

increasing anything that you have to be scared of, you know what I’m

saying? I mean, the things that you’ve already talked about would put

you in the position of being a witness. Okay? So to tell everything you

know is not going to make things any worse, but if it’s more helpful to

us, it’s going to be more helpful to you.

Also on March 27, Wagner questioned Stewart about the Dulin homicide;

Stewart denied involvement or knowledge. On March 29, Wagner completed an

affidavit or statement of probable cause, reciting what Kimberling said to implicate

Stewart at the March 27 interview. The statement did not report that she had

implicated Pethoud and Connelly, but not Stewart, at the initial interview. That day,

Selby filed murder charges against Stewart and Connelly based on the probable cause

statement; Stewart, in the middle of serving a two-week jail sentence for DWI, was

detained on the murder charge. Some weeks later, Kimberling testified at the

preliminary hearing. She did not testify at Stewart’s trial.

Count I of Stewart’s Second Amended Complaint included the § 1983 claim

that Prosecutor Selby and Detective Wagner procured Kimberling’s fabricated

statements to create probable cause when none existed. Stewart’s Suggestions in

Opposition to defendants’ summary judgment motions argued this part of his claims

in Count I as a violation of his right to substantive due process. In denying

defendants’ motions for summary judgment, the district court concluded that

“Wagner’s reliance on the portions of Alicia Kimberling’s statements that

corroborated the theory of the case that Zack Stewart committed the murder, but

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ignored her contradictory statements withoutfurther investigation violated [Stewart’s]

due process rights.” On appeal, Selby argues the court erred in denying his motion

for summary judgment on this claim. “Whether a substantive due process right exists

is a question of law.” Moran v. Clarke, 296 F.3d 638, 643 (8th Cir. 2002) (en banc). 

Because the Supreme Court is “reluctant to expand the concept of substantive

due process,” it has held “that where a particular Amendment provides an explicit

textual source of constitutional protections against a particular sort of government

behavior, that Amendment, not the more generalized notion of substantive due

process, must be the guide for analyzing those claims.” County of Sacramento v.

Lewis, 523 U.S. 833, 842 (1998) (citations and quotation omitted). Therefore, a

§ 1983 plaintiff’s claim that he was arrested or prosecuted without probable cause,

even if labeled a claim of malicious prosecution, “must be judged” under the Fourth

Amendment, not substantive due process. Albright v. Oliver, 510 U.S. 266, 270-71

& n.4 (1994) (plurality opinion joined by seven Justices on this issue). We

recognized in Moran that additional considerations in a particular case may trigger

substantive due process protection, like the impact of “falsely-created evidence and

other defamatory actions” on a public employee plaintiff’s career, and the equal

protection interest in not being investigated or punished on account of race, that were

present in that case. 296 F.3d at 645. But here, Stewart was not a public employee,

race was not an issue, and the alleged fabricated evidence was only used in a probable

cause statement. Thus, the general rule in Oliver applies, and the district court

committed an error of law in not judging the actions of Selby and Wagner under the

Fourth Amendment. 

Stewart’s Suggestions in Opposition to summary judgment made only a cursory

reference to one Fourth Amendment precedent, Malley v. Briggs, 475 U.S. 334

(1986). He made no showing that the Fourth Amendment required Wagner to

disclose all of Kimberling’s statementsin a probable cause statement, and no showing

that Wagner and Selby did not have arguable probable cause to arrest, the governing

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Fourth amendment standard. See New v. Denver, 787 F.3d 895, 899 (8th Cir. 2015). 

“The evaluation of evidence to determine if probable cause exists is not an exact

science.” Brodnicki v. City of Omaha, 75 F.3d 1261, 1265 (8th Cir.). cert. denied,

519 U.S. 867 (1996). Qualified immunity “gives ample roomfor mistaken judgments

by protecting all but the plainly incompetent or those who knowingly violate the

law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quotations omitted). We note that

the preliminary hearing at which Kimberling testified was nearly two months after

charges were filed based on Wagner’s probable cause statement. Stewart did not gain

pretrial release or dismissal of the charges at that hearing, which strongly suggests

that the presence of arguable probable cause was overwhelming. 

On this record, we conclude it was error to deny Prosecutor Selby qualified

immunity on this claim because Stewart failed to present sufficient evidence that

Wagner and Selby violated “clearly established [Fourth Amendment] rights of which

a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 817-18

(1982); cf. Morris v. Lanpher, 563 F.3d 399, 403 (8th Cir.), cert. denied, 558 U.S. 970

(2009). Given this conclusion, we need not consider Selby’s alternative argument

that he is entitled to absolute immunity from this claim. 

III. The Sixth Amendment Claims. 

On the afternoon of March 30, Victor Parker and Coty Pollard, Stewart’s cell

mates, told Wagner they had information on the Dulin homicide but said they wanted

their lawyer present when they disclosed the information and a benefit in exchange

for providing it. Parker told Selby at a second interview on April 3 that Wagner told

him to “find out anything you can.” After being approached by Parker and Pollard,

Wagner questioned Stewart about his statements to his cellmates. Stewart said, “I

didn’t tell em nothin, I don’t know nothin. I need to speak with an attorney.” Wagner

then asked Selby if he could arrange for Parker and Pollard’s lawyer to be present

while they were questioned; Parker and Pollard were returned to their cell with

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Stewart. Between March 30 and April 3, Parker repeatedly questioned Stewart about

the Dulin homicide and encouraged Stewart to implicate himself in the murder,

despite Stewart’s insistence he was not involved. 

On April 3, Wagner and Selby interviewed Parker. During this interview,

Parker offered to question Stewart about the murder. Wagner said, “we can’t really

ask you to go back there and dig for anything, I would say if you do happen to hear

anything, I would really like to hear about it but I can’t ask you to go back there and

ask questions specifically.” Selby added, “if you do anything on law enforcement’s

behalf, [it’s] just as if the law enforcement was doing it themselves . . . . [O]n the

other hand, I don’t think there’s any obligation that just because he’s talking to you

that we have to move you out of there.” Selby told Parker he did not need to “put

[his] pillow over [his] earsif [Stewart] starts talking or anything.” Parker and Pollard

testified at Stewart’s trial and were, in Selby’s words, the “key witnesses.” See

Stewart, 313 S.W.3d at 665-66. Stewart’s only trial witness was his sister, Pethoud,

who testified that Stewart stayed overnight at her house on the night of the murder.

Id. at 664. 

Once the adversary judicial process has been initiated, the Sixth amendment

guarantees a defendant the right to have counsel present at all critical stages of the

criminal proceedings, including interrogation by the State. See United States v.

Gouveia, 467 U.S. 180, 187 (1984); Massiah v. United States, 377 U.S. 201, 204-05

(1964). In Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986), the Supreme Court stated

the applicable standard when the issue is whether trial testimony of a jailhouse

informant should be suppressed for violation of this principle:

Since the Sixth Amendment is not violated whenever -- by luck or

happenstance -- the State obtains incriminating statements from the

accused after the right to counsel has attached, a defendant does not

make out a violation of that right simply by showing that an informant,

either through prior arrangement or voluntarily, reported his

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incriminating statements to the police. Rather, the defendant must

demonstrate that the police and their informant took some action,

beyond merely listening, that was designed deliberately to elicit

incriminating remarks.

(Quotations and citation omitted.) Applying this principle, we have held that, to

establish a Sixth Amendment violation warranting suppression of statements made

to a jailhouse informant, defendant must show (1) “his right to counsel had attached,”

(2) the informant “was a government agent,” and (3) the informant “deliberately

elicited incriminating statements from him.” Moore v. United States, 178 F.3d 994,

999 (8th Cir.), cert. denied, 528 U.S. 943 (1999). 

Stewart claims Wagner and Selby violated his Sixth and Fourteenth

Amendment right to counsel when they obtained a false confession “through the use

of jailhouse snitches Pollard and Parker as [their] agents.” The district court denied

Wagner and Selby qualified immunity from this claim because there exists “genuine

issues of material fact asto whether [they] violated Stewart’s Sixth Amendment right

to counsel by directing Parker to glean additional information from Stewart after he

had invoked his right to counsel, and by sending Parker and Pollard back into the

same cell with Stewart after he had invoked his right to counsel, thereby creating a

‘situation likely to induce’ [Stewart] to make incriminating statements.” 

If this were an appeal from the denial of a motion to suppress or exclude the

testimony of Parker and Pollard, or from the denial of a properly preserved federal

habeas claim, we might well agree there issufficient evidence of a Sixth Amendment

violation under Kuhlmann to warrant a full trial of this claim. But this is the appeal

from the denial of qualified immunity from a § 1983 claim. Neither the district court

nor Stewart cited, and we have not found, a reported federal decision discussing the

elements of a § 1983 Sixth Amendment claim based on use of a jailhouse informant’s

testimony at trial, and the proper application of qualified immunity principlesto such

a claim. The absence of such precedent is not dispositive but is clearly relevant. 

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Because qualified immunity protects all but the incompetent, and knowing

violators, “[w]e do not require a case directly on point before concluding [the § 1983

defendant violated] clearly established [law], but existing precedent must have placed

the statutory or constitutional question beyond debate.” Stanton v. Sims, 134 S. Ct.

3, 5 (2013), quoting Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011). Here, the

Supreme Court and Eighth Circuit cases most directly on point, Kuhlmann and

Moore, require Stewart to prove that Wagner and Selby took action “that was

designed deliberately to elicit incriminating remarks,” not merely listening, thereby

making Pollard and Parker government agents. “An informant becomes a government

agent for purposes of [the Sixth Amendment’s protection against deliberate

government elicitation] only when the informant has been instructed by the

[government] to get information about the particular defendant.” Moore, 178 F.3d

at 999 (quotation omitted). Here, according to Parker, Wagner told him to “find out

anything you can” a few hours after Selby filed charges against Stewart -- which

started the “adversary judicial process” for purposes of Massiah – but before Stewart

invoked his right to counsel for the first time after cooperating with investigators for

some four months.

The following facts are undisputed: (i) Parker and Pollard came to Wagner the

afternoon of the day Stewart was first charged, offering to provide information that

Stewart had volunteered the night before, which turned out to be a confession that he

participated in the murder but lacking details; (ii) before that, Stewart had repeatedly

talked to Wagner about the murder without invoking his right to counsel; (iii)

according to Parker, Wagner told him to “find out anything you can” from Stewart;

(iv) Wagner immediately told Stewart that his cell mates said he had confessed, and

Stewart invoked his right to counsel; (v) when Wagner and Selby met with Parker and

Pollard a few days later, they instructed the informants to continue listening but not

to elicit statements from Stewart, because that would be “just as if the law

enforcement was doing it themselves;” (vi) they then put Pollard and Parker back in

Stewart’s cell. 

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Wagner and Selby testified they were aware of and believed their actions at the

April 3 interview did not violate Stewart’s Sixth Amendment rights. Even if Wagner

had encouraged Parker to be more than a “listening post” at the March 30 meeting (a

disputed issue of fact), Wagner immediately told Stewart that his cell mates were

reporting what he said, fair warning not to talk to them if he was invoking his right

to counsel. The judgment of Wagner and Selby on this issue may have been wrong,

but Kuhlmann and the earlier cases it applied create a very indistinct line between

aggressive use of jailhouse informants that does and does not violate the Sixth

Amendment rights of a defendant who has just been charged and invokes his right to

counsel. And there were no § 1983 precedents giving these defendants “fair and clear

warning of what the Constitution requires,” Al-Kidd, 131 S. Ct. at 2086-87

(quotations omitted), and therefore no “existing precedent [that] placed the statutory

or constitutional question beyond debate,” Stanton, 134 S. Ct. at 5. In such

circumstances, suppression, not § 1983 damage liability, is the appropriate remedy. 

Cf. Hannon v. Sanner, 441 F.3d 635, 638 (8th Cir. 2006). 

There is another fundamental reason why Wagner and Selby deserve qualified

immunity from this § 1983 damage claim. Stewart failed to put in the summary

judgment record evidence of whether defense counsel at trial moved to suppress or

exclude testimony by Parker and Pollard because it was obtained in violation of the

Sixth Amendment; if so, how the trial court ruled; and whether the issue was then

pursued on direct appeal. If the motion was made and denied, that would at least

establish there was no clearly established violation of the Sixth Amendment. If the

motion was made and granted, the ruling would only have excluded testimony by

Parker and Pollard after they were effectively functioning as government agents; any

“confession” they heard before then would not be excluded, leaving Stewart unable

to prove § 1983 injury causation. If the motion was not made at all, then any injury

to Stewart from the trial testimony of Parker and Pollard was caused by the

supervening ineffective assistance of trial and/or appellate counsel. There is no

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constitutional tort without injury. Buckley v. Fitzsimmons, 20 F.3d 789, 796 (7thCir.

1994).

For these reasons, we conclude the district court erred in denying Wagner and

Selby qualified immunity fromthis Sixth Amendment damage claim, and we need not

consider Selby’s alternative absolute immunity contention. 

The order of the district court dated June 12, 2015, is reversed in part, and the

case is remanded for further proceedings not inconsistent with this opinion. 

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